Karnataka High Court
Sangappa Sidramappa Bisnal vs Jyoti D/O Ashok Patar And Ors on 10 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.200210/2016
Between:
Sangappa Sidramappa Bisanal
Aged about 68 years
Occ: Agriculture
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur
.... Appellant
(By Sri S.S.Mamadapur, Advocate)
And:
1. Jyoti D/o Ashok Pattar
Aged about 20 years, Occ: Nil
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur
2. Sugala D/o Ashok Pattar
Aged about 12 years, Occ: Nil
Minor R/by respondent No.3
Mother, R/o Arjunagi BK
Tq.Indi, Dist. Vijayapur
3. Nirmala W/o Ashok Pattar
2
Aged about 47 years, Occ: Agri
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur
4. Ashok Basappa Pattar
Aged about 52 years, Occ: Agri
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur
5. Danawwa W/o Late Basappa Pattar
Aged about 73 years, Occ: Agri
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur
6. Rajashekhar Basappa Pattar
Aged about 45 years, Occ: Nil
R/o Arjunagi B.K.
Tq.Indi, Dist.Vijayapur.
... Respondents
(By Sri Ameet Kumar Deshpande, Advocate)
This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure praying to set aside
the judgment and decree dated 29.04.2015 in
R.A.No.161/2012 passed by the I-Addl. District Judge,
Vijayapur, and also judgment and decree dated
12.07.2012 in O.S.No.38/2009 passed by the Senior
Civil Judge, Indi, and dismiss the suit of the plaintiffs
by allowing this appeal.
This appeal coming on for admission this day, the
Court delivered the following:
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JUDGMENT
This appeal lays challenge to the common judgment and decree in R.A.Nos.133 and 161/2012 dated 29.04.2015 passed by the I-Addl. Dist. Judge, Vijayapur, wherein the appeal filed by the appellant- defendant No.4 in R.A.No.161/2012 came to be dismissed and appeal filed by defendant No.2- Dhanawwa in R.A.No.133/2012 is allowed modifying the share of the plaintiff Nos.1 to 3 to the extent of 1/3rd share in the suit schedule properties.
2. The appellant is defendant No.4 and the respondent Nos.1 to 3 are plaintiff Nos.1 to 3 and respondent Nos.4 to 6 are defendant Nos.1 to 3 before the trial Court.
3. The parties will be referred as plaintiffs and defendants as per their respective ranks before the trial court for convenience.
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4. The brief case of the plaintiffs before the trial Court in O.S.No.38/2009 was that the plaintiff Nos.1 and 2 are the daughters of defendant No.1 and plaintiff No.3 is wife of defendant No.1 filed a suit seeking relief of partition and separate possession and permanent injunction. It is contended that defendant No.2- Dhanawwa is mother of defendant Nos.1 and 3. Ashok- defendant No.1 born through the first wife Sugalawwa. After the death of Sugalawwa, the Basappa-father of defendant No.1 married to one Dhanawwa. Defendant No.3-Rajashekhar is son of said Dhanawwa-defendant No.2. Suit properties are four agricultural lands and one house situated at Arjunagi BK village of taluk Indi, which are joint ancestral family properties of the plaintiffs and the defendants. The suit properties are in joint possession and enjoyment of plaintiffs and defendants. It is further contended that there was some family arrangement made to get the government benefit, but the said family arrangement is not binding on the 5 plaintiffs. Defendant No.1-Ashok addicted bad vices and he is intending to sell the suit land and get the amount for his bad habits. Plaintiff No.3-Nirmala came to know about these facts, she demanded legal right of share of plaintiff Nos.1 and 2. Therefore to protect the right and interest of the plaintiffs they have filed suit for partition. The said land was sold without family necessity. It appears during pendency of the suit, defendant Nos.1 to 3 sold some portion of the property i.e. 2 acres to defendant No.4, so he was made as party as defendant No.4.
5. Among defendants, defendant No.3 filed the written statement and denied the plaint averments as all false. They have denied all the averments regarding suit property being the joint ancestral family property as false. In fact, to meet out the family loan, defendant Nos.1 and 3 sold 2 acres of land in Bl.No.127/1 of Arjunagi village to Sangappa Sidramappa Rabinal and 6 used the said sale amount for the family necessity. So the plaintiffs have no right to claim the suit property. Plaintiff Nos.1 and 2 are female, hence, during lifetime of defendant No.1 they cannot claim any share in the suit properties.
6. Defendant No.4 filed written statement contending that he is bonafide purchaser of 2 acres of land. He has spent huge money for improvement of land. Plaintiff Nos.1 and 2 are female children of defendant No.1 hence, they have no right to claim share in the suit properties. For the family necessity defendant Nos.1 and 3 have sold 2 acres of land, hence, he is bonafide purchaser of the said land. Therefore, he prayed to dismiss the suit.
7. The plaintiffs have filed re-joinder denying the written statement and the said sale made by defendant Nos.1 and 3 is not binding on the plaintiffs. 7 Defendant Nos.1 and 2 have not filed any separate written statement.
8. On the basis of above pleadings, the trial Court framed issues. Thereafter plaintiff No.3 got examined herself as PW.1 and got marked 4 documents as ExP.1 to Ex.P4 and got examined two witnesses as PW.2 and PW.3. On behalf of defendants, defendant No.3 is examined as DW.1, no documents were marked and closed their side.
9. After hearing both sides, the trial Court dismissed the suit holding that plaintiff Nos.1 to 3 are entitled to get 1/4th share in the half share of defendant No.1 in the suit properties and directed to effect partition and separate possession in the suit properties by metes and bounds.
10. Aggrieved by the same, two appeals came to be filed. One by defendant No.2 in R.A.No.133/2012 8 and the other in R.A.No.161/2012 by defendant No.4. After hearing both sides, the First Appellate Court dismissed R.A.No.161/2012 filed by defendant No.4 and allowed R.A.No.133/2012 filed by defendant No.2, modifying the judgment and decree of the trial Court only to the extent of shares and held that defendant Nos.1 to 3 are entitled for 1/3rd share each in the suit scheduled properties and plaintiff Nos.1 to 3 are entitled for 1/4th share inclusive along with share of defendant No.1. Aggrieved by the same, the present appeal is filed by defendant No.4 on the following grounds:
(a) That the judgment and decree passed by the First Appellate Court is contrary to the law and facts;
(b) the Courts below failed to taken into consideration the sale deed, when the plaintiff specifically asked for sale deed executed by the defendants in favour of defendant No.4 as null and void and not binding on the share of the plaintiffs; 9
(c) the Courts below committed error by granting share to the plaintiffs in entire suit properties;
(d) the plaintiffs themselves have stated in the plaint that R.S.No.127/1 measuring 2 acres have been sold by the defendants in favour of defendant No.4, the Courts below ought to have rejected the share in the said property; both Courts committed an error in granting share in all the suit properties as Sy.No.127/1 measuring 2 acres was already sold to defendant No.1.
With these main contentions, the present appeal is filed.
11. Heard Sri S.S.Mamadapur, learned counsel for appellant and Smt.J.S.Kulkarni learned counsel for Sri Ameet Kumar Deshpande, learned counsel on record for the respondents and perused the judgment of the trial Court and the First Appellate Court. 10
12. The learned counsel Sri S.S.Mamadapur, argued that the filing of the suit is not within the knowledge of defendant No.4. The learned counsel further argued that for family necessity these defendant Nos.1 and 3 have sold the property to defendant no.4. So he is bonafide purchaser of the said 2 acres without notice of filing of suit. But the Courts while allotting the share should have excluded 2 acres sold to defendant No.4 and whatever share allotted in other properties they could have been allotted to plaintiffs and others divided between them. The defendants No.1 & 3 also admitted in their written statement about selling the said property to defendant No.4 for legal necessity. Therefore, the learned counsel argued that in order to deprive the property sold to defendant No.4, these plaintiffs and defendant Nos.1 to 3 filed FDP No.11/2015 during the pendency of this regular second appeal. They got compromised themselves in the said case without making this defendant No.4 as a party in 11 FDP proceedings, just to deprive the property purchased by defendant No.4. When it came to the knowledge of defendant No.4, he filed W.P.No.203341/2016 before this Court and this Court by order dated 28.06.2018 has set aside the said compromise. There is nothing in the compromise petition regarding the property sold by defendant Nos.1 and 3 to defendant No.4. The said FDP compromise petition was set aside. It is stated that the said FDP No.11/2015 is still pending before the Senior Civil Judge, Court Indi. Learned counsel for the appellant stated that defendant No.4 is in possession of 2 acres of land from the date of purchase and prays to admit appeal by framing substantial question of law.
13. The learned counsel for respondent supported the concurrent finding of both the Courts and submitted no substantial of law arise for consideration.
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14. I have carefully gone through the Judgments of both Courts and evidence.
15. The First Appellate Court at para-11 has observed that defendant No.4 did not enter the witness box to prove that he is a bonafide purchaser as contended in the written statement and drawn adverse inference against him that he has failed to show that he is bonafide purchaser. Both the trial Court and the First Appellate Court held that defendant No.4 has not lead any evidence and it is stated before the trial Court that defendant No.4 has no evidence. Therefore, both Courts have come to conclusion that defendant No.4 has not proved that he was a bonafide purchaser without noticing of filing of suit.
16. It is evident that, the modification made by the first appellate court in respect of shares i.e., from 1/4th share 1/3rd share is proper as the daughters are also entitled to equal share to that of son, in view of the 13 settled legal position of law by the Hon'ble Supreme Court in decision reported in AIR 2020 Supreme Court 3717 in case of Vineeta Sharma Vs Rakesh Sharma and others.
17. The learned counsel for appellant has relied on the decision of this High Court reported in ILR 2010 Kar. 1484 in case of Pushpalatha N.V Vs V Padma and others. Of course the question involved in that decision is now finally decided in Vineeta Sharma's case referred (supra). It is evident that, the plaintiffs by filing rejoinder have prayed that, the sale deed executed by defendant Nos.1 & 3 is not binding on their share. Even though there is specific prayer, the court has not formally stated in the relief column or operative portion of Judgment in this regard. But that itself is not a ground to interfere with the Judgment of the First Appellate Court. It is settled principle of law that, when a suit is filed for partition and during the pendency of 14 the suit if any property is sold by one of the party then it is between the parties and the purchaser to work out their remedy and the plaintiffs can seek partition only stating that, such a sale is not binding on them or their share. In fact the plaintiffs have filed rejoinder stating that the sale deed as null and void. Be that as it may. Anyway both the Courts after considering the oral and documentary evidence have allotted share to the plaintiffs and defendants.
18. The defendants No.1 & 3 admitted selling of two acres of land to the defendant No.4. FDP is also pending now. In fact defendant No.4 filed writ petition and got set aside the compromise entered between defendants No.1 to 3 in that FDP. Therefore, when defendants Nos.1 & 3 admits selling of 2 acres of land to defendant No.4 then it is for defendant No.4 to urge that contention before the said FDP proceedings which is stated to be pending before concerned court regarding allotment of shares to plaintiffs and defendants. It is 15 open to the said Court to consider the said contention if any made in this regard in accordance with law.
19. In view of the concurrent finding by both the Courts and for the discussion made above, I am of the opinion that, no substantial question of law would arise for consideration in this appeal. The appeal being devoid of merits and liable to be dismissed.
Accordingly I pass the following:
ORDER The Regular Second Appeal is dismissed. The Judgment and decree passed by the I-Addl Dist. Judge, Vijayapur, in R.A.No.161/2012 dated 29.04.2015 is hereby confirmed.
The parties are directed to bear their own costs. Send back the secured records to the concerned Courts forthwith if any.
Sd/-
JUDGE sdu/MNS